Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd
[2013] FWC 8805
•9 DECEMBER 2013
[2013] FWC 8805 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Construction, Forestry, Mining and Energy Union
v
BHP Coal Pty Ltd
(C2013/4107)
Coal industry | |
COMMISSIONER SPENCER | BRISBANE, 9 DECEMBER 2013 |
Alleged dispute regarding leave approval - clause 22.6
Introduction
[1] This Decision relates to an application made by the Construction, Forestry, Mining and Energy Union (the Union/Applicant) pursuant to s.739 of the Fair Work Act 2009 (Cth) (the Act). The dispute, relates to the interpretation of the BMA Enterprise Agreement 2012 (the Agreement) and various clauses (extracted below) relating to leave approval for employees.
[2] A conciliation conference was held to resolve the dispute but the matter was not resolved between the parties.
[3] Directions by consent were set for the filing of an agreed question for Arbitration and for each party to file submissions and evidence in the matter.
[4] The parties agreed the question for Arbitration as follows:
“Under clause 22.6 of the BMA Enterprise Agreement 2012 (Agreement), are all workers within a crew counted in calculating whether “more or less than 20%” are “away on annual leave” at a given time under clause 22.6(a) or is the calculation made by reference to BMA employees only.”
[5] While not all of the submissions and evidence in this matter are referred to in this Decision, all of such have been taken into account.
Relevant legislation and Agreement clauses
[6] The dispute was notified to the Commission pursuant to s.739 of the Act which provides so far as is relevant to this matter:
“739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
...
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so...”
[7] Section 738 of the Act relevantly provides:
“738 Application of this Division
This Division applies if:
...
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or
...”
[8] The relevant procedure for dealing with disputes in the Agreement is clause 37 which provides, in part, as follows:
“37 Dispute Settlement Procedure
37.1 It is the intention of the Parties that any disputes arising in relation to the NES; or pertaining to this Agreement; or in relation to the application of the Accommodation Agreements (as referred to in clause 34 of this Agreement); or arising in the course of employment shall be dealt with in accordance with this clause.
...
37.16 Subject to clause 37.15, provided that all the above steps have been exhausted FWA may conciliate or where conciliation has been exhausted and the dispute remains unresolved, arbitrate in relation to the matter. Where a matter involving an individual Employee progresses to this stage, the Employee will be permitted to attend FWA proceedings on the same arrangements set out in clauses 38.13 and 38.14. If proceedings are brought on more quickly by FWA, the travel plan must be submitted immediately upon the listing of the matter by FWA and before travel commences.
37.17 In the circumstances set out in clauses 14(e) or 14(g), or by agreement under clause 37.15, FWA may:
(a) Conciliate in relation to the matter; or
(b) Where conciliation has been exhausted and the dispute remains unresolved, arbitrate in relation to the matter.
The parties to the matter are not required to first exhaust the above steps for the purposes of this sub-clause.
37.18 During any conciliation or arbitration proceedings before FWA under this clause 37, either party may choose to be represented by a legal practitioner.
37.19 If FWA issues a decision in writing under this clause:
(a) the decision and reasons for the decision will be provided in writing to the parties; and
(b) the decision shall be binding on the parties to the matter in dispute and persons bound by this Agreement.
37.20 Nothing in clause 37.19 removes the right of either party to a matter in dispute from appealing a decision of FWA, in accordance with the Act.
37.21 If a person who will be involved in any discussions, conferences or proceedings under this clause is not employed or reasonably available at the Mine, then that person may participate by teleconference or other remote means where possible, to expedite the process.
37.22 None of the arrangements in this clause otherwise limit the rights of the Parties at common law or under the Act.
37.23 The outcome of any matter dealt with in accordance with clause 37.10 will be recorded in writing but will not form a precedent for any other matter, either at that Mine or at any other Mine.”
[9] The parties agreed that the disputes procedure allows for the arbitration of this dispute and that the procedure has been complied with.
[10] Clause 22.2, within the annual leave clause, of the 2012 Agreement states:
“The Parties recognise the benefits of ensuring Employees utilise leave and will encourage leave to be taken by Employees as leave accrues to prevent excess accumulation.”
[11] Clause 22.3 of the 2012 Agreement states:
“All Employees (other than Employees at Gregory and Crinum Mines) are entitled to annual leave at the rate of five weeks per year of continuous service (175 ordinary hours), except for:
…”
[12] Clause 22.6 of the Agreement states:
“22.6 Annual leave quotas
(a) Annual leave quotas are as follows:
Shift Coverage | Leave approved? |
● Less than 20% (rounded up to the nearest whole number) away on annual leave at any time during the period of that leave (based on approved crew numbers) | ● Leave will be approved providing that adequate notice is given (see clause 22.5) |
● 20% or more (rounded up to the nearest whole number) away on annual leave at any time during the period of that leave (based on approved crew numbers) | ● The operation of the Mine is presumed to be affected |
(b) Approved crew numbers for the purposes of calculating the above ratios will not include apprentices. Approved crew numbers are the number of positions in each crew approved by the Company. Approved crew numbers will be provided by a supervisor to an Employee upon request.
(c) If the opportunity arises, the leave numbers in clause 22.6(a) may be increased from time to time at the Company’s discretion and subject to operational requirements and the availability of suitable skilled labour, including labour hire.”
[13] Clause 1.1, the application/coverage clause of the Agreement states:
“This Enterprise Agreement (“Agreement”) will cover and apply to:
(a) BHP Coal Pty Ltd (“the Company”) with respect to the Employees employed at the following mines currently managed by BHP Billiton Mitsubishi Alliance (“BMA”):
(1) Goonyella Riverside Mine;
…”
[14] Clause 47 of the Agreement states:
“47.1 Defined terms:
…
“Employee” means a person employed by BHP Coal Pty Ltd who is covered by this Agreement. It does not include a contractor employee or labour hire employee.”
[15] The parties also referred the Commission to the predecessor clauses in the 2007 Agreement. An example clause is found in Schedule B of the 2007 Agreement, as applied to the Peak Downs Mine:
Shift coverage | Less than 7 days notice | 7 days or more notice |
<20% employee absent on annual leave or long service leave | Maybe, subject to the review by the supervisor as to impact on the operation. Approval at management’s discretion | Employee entitled to receive leave requested |
>20% employees absent on annual leave or long service leave | Maybe, subject to the review by the supervisor as to impact on the operation. Approval at management’s discretion | |
Summary of Applicant’s submissions and evidence
[16] The Applicant described the dispute in the following terms:
“The dispute relates to the ability of employees to have annual leave approved under clause 22.6(a) of the Agreement which provides for a quota system.” 1
[17] Clause 22.6(a), of the current Agreement, has been extracted above. The Applicant’s contention is that when calculating (or applying) leave quotas in accordance with clause 22.6(a) of the Agreement, the Respondent is not permitted to take into account absences of non-employee workers which would reduce the number of BMA employees that could be on annual leave at any one time. 2
[18] The Applicant submitted that it was the intention of the parties, in drafting the Agreement, to ensure the ability of employees to take leave where the number of employees on leave was lower than the set quota. The Applicant further submits that it was not the intention to take into account the number of non-employee workers absent, on the basis that these non-employees are not entitled to leave under the Agreement and therefore should not be included in the quota calculation.
[19] The Applicant submitted that the Respondent has refused to accept leave, as requested by employees, on the basis that the non-employee workers (eg labour hire employees etc) were unavailable.
[20] The Applicant submitted that the evidence is, that the parties negotiated the Agreement, in respect of annual leave quotas, with the intention of simplifying the existing arrangements that existed under the BHP Coal Pty Ltd Workplace Agreement 2007 (the 2007 Agreement). Further, it was submitted by the Applicant, that the intention was to create an automatic entitlement to take annual leave, if the quota of those on leave had not yet been met.
[21] The Applicant filed a statement of Mr Glenn Power, District Vice-President of the Applicant. Mr Power, amongst others, was a representative of the Applicant for the purposes of bargaining for the Agreement. 3
[22] Mr Power’s evidence is, that the “issue of annual leave” 4 was discussed on a number of occasions.
[23] Expanding upon what the “issue of annual leave” included, Mr Power’s evidence was that the discussions centred on simplifying the Agreement provisions, and covered removing site specific annual leave arrangements, and also how the annual leave quotas would work. 5
[24] Annexed to Mr Power’s statement was a document issued by the Respondent during negotiations, to employees, with updates regarding bargaining. Relevant to this matter it stated:
“Leave Quotas - BMA has included a common approach to identifying leave quotas in the main Agreement. It also provides a (sic) quite a favourable calculation method for employees”. 6
[25] Mr Power’s evidence stated that the Respondent sought to simplify the entitlements but without reducing employee benefits. Following this, Mr Power’s evidence was that the “clear understanding of the parties was that the leave quotas would be calculated in a manner favourable to employees”. 7
[26] Mr Power confirmed that the concept of “approved crew number” was to include all positions (ie contractors and Respondent employees) and not be calculated by reference to BMA employees only. However this calculation was to be favourable to employees in that the Agreement, based the calculation on “approved crew numbers”, meant that a higher number of employees could be on leave.
[27] It was Mr Power’s evidence that as the Agreement only applied to, or covered, employees, annual leave entitlements only applied to employees, therefore the 20% quota would operate, only by reference to employees. According to Mr Power, this was the “favourable basis” to which the parties referred. Mr Power further stated in evidence that leave quotas, were never discussed, in the context that other workers would have any influence, or be taken into account, in determining access to actual leave entitlements for employees.
[28] Mr Power gave evidence of the comparison between the relevant provisions in the Agreement and in the 2007 Agreement. Clause 16, of schedule B of the 2007 Agreement provided that leave quotas were calculated by reference to how many employees were taking annual leave. Specifically the 2007 Agreement provided:
“<20% employee absent on annual leave or long service leave” 8 (this clause is also extracted above)
[29] The Applicant submitted that the approach to construing industrial instruments is well settled and referred to the well known passage in Kucks v CSR Limited 9 (extracted later in this decision).
[30] The Applicant submitted that the starting place for the Commission, in construing an industrial instrument is the words themselves, used by the framers. Following this, the Applicant referred to clause 22.6(a) to assert the proposition that the Agreement provides for employees to take annual leave if less than 20% of the approved crew number is away on annual leave.
[31] The Applicant provided an example to illustrate the construction they submitted:
“The Applicant submits that the following example illustrates the appropriate application of clause 22.6(a):
(a) Crew X has an approved crew number of 40.
(b) The quota is 8 (20%).
(c) If 7 or less employees are away on annual leave and another employee applies for annual leave then it must be granted.
(d) If 8 or more employees are away on annual leave and another employee applies for annual leave then the company has discretion to grant or refuse to grant the leave under the second part of clause 22.6(a).” 10
[32] The Applicant submitted that 20% should be taken to mean 20% of the approved crew number. Further it was submitted that this interpretation reflected the clear wording of the clause. The “approved crew number” includes both BMA employees and non-employees. Mr Power’s evidence confirmed that this was the common intention. 11
[33] The Applicant further submitted that the clause does not make any mention of a calculation based on the total number of workers, rather than BMA employees alone.
[34] The reverse of this submission is also apparent; the clause does not define that the 20% leave quota is to be filled by employees only.
[35] The Applicant submitted that the wider context of the Agreement supported the interpretation, they contended. The fact that the Agreement defined the term “employee” (refer clause 47.1, extracted above) and that the annual leave entitlements prescribed by clause 22 of the Agreement only applied to “employees”, was significant in the Applicant’s submission.
[36] Further, the Applicant submitted that the additional reference in clause 22.6(c) to labour hire workers and suitable skilled labour indicated that the parties intended that the clause would operate, otherwise without consideration to the non-employee workers.
[37] The Applicant submitted in reply that the wording of the clause, as submitted by the Respondent (below), cannot be construed in such a way such that it operates as 20% of the approved crew numbers.
Summary of Respondent submissions and evidence
[38] The Respondent confirmed its position that the Commission has jurisdiction to arbitrate this matter and submitted that all workers within the approved crew number are counted when applying the 20% quota.
[39] The Respondent generally agreed with the applicable principles in interpreting an industrial instrument, specifically the ordinary meaning, context and purpose and sensible industrial outcome principles.
[40] The Respondent submitted that the relevant clauses provide a system of granting leave based upon the manning requirements of a particular crew which was reflected by the approved crew numbers.
[41] The Respondent submitted that both BMA employees and non-employee workers were included for the purposes of calculating the approved crew number. This part of the Respondent’s submission is not contested by the Applicant.
[42] The Respondent submitted that both BMA employees and non-employee workers must be counted in calculating whether more or less than 20% of the approved crew numbers is on annual leave, at a given time. Applying the principles of construction, the Respondent submitted that this outcome was consistent with the ordinary meaning of the words in clause 22.6, with the context and purpose of the clause when read as a whole and achieves a sensible industrial outcome.
[43] The Respondent submitted that clause 22.6 relates to “shift coverage” being the heading used in the column of clause 22.6(a). This signifies that the leave quota operates by reference to shift coverage and the operational requirements rather than providing an “entitlement” of employees.
[44] The Respondent emphasised that the clause operated “based on” the approved crew numbers and that the word employee, while defined in the Agreement, is not used in the clause in this respect.
[45] The Respondent submitted that the Applicant’s submission in regards to a favourable outcome to employees is not entirely correct. The Respondent submitted that the actual case was that the parties sought to provide a clause that was “quite favourable” and that this was achieved by “rounding up” so that vacancies would be included as part of the 20% calculation. Further, and contrary to the Applicant’s submissions and evidence, the Respondent submitted that the intention throughout bargaining had been to include BMA employees and non-employee workers in the quota calculation.
[46] The Respondent also submitted that the inclusion of the “automatic” approval process stipulated by the leave quota system is a modification of the ordinary right of employees to take annual leave by agreement with their employer. This modification, in the Respondent’s submission, means that the Respondent, as employer, needs some control and operational certainty from the process and that this is the context or industrial outcome which was sought to be achieved.
[47] The Respondent relied upon a statement of Ms Helen Julia Fellows, Industrial Relations Advisor to the Respondent. Ms Fellows was involved in the negotiations for the current Agreement.
[48] Ms Fellows gave evidence pertaining to three specific bargaining meetings on 26 July 2011, 19 August 2011 and 12 January 2012 in Mackay, Rockhampton and Brisbane respectively. Ms Fellows took notes of each of these meetings, which were annexed to her statement in these proceedings.
[49] Ms Fellows’ evidence, and her notes reflect, that generally the discussion around leave quotas, focussed on the calculation of approved crew numbers and the basis upon which it was to be calculated.
[50] As an example, Ms Fellows provided evidence, that there was discussion around whether labour hire employees would be included from the calculation if it was “supplementary” labour (ie in addition) or was filling a crew vacancy. 12 Ms Fellows gave a specific example, in relation to the 19 August 2011, meeting where she stated that Mr Steve Pierce, District Vice President of the Applicant, raised an issue regarding previous denials of leave to employees at the Norwich Park site.13
[51] Ms Fellows’ evidence was that Ms Judy Gray, at the time, the National Legal Officer of the Applicant, commented that as labour hire employees are not covered by the Agreement they should be excluded from the quota. Ms Fellows’ evidence however was that, in the context of the discussion it was “clear” that Ms Gray was referring to supplementary labour hire as opposed to labour hire filling crew vacancies.
[52] In response to Mr Power’s evidence, Ms Fellows stated that the reference to a “favourable calculation” is correct, only in so far as, the favourable nature, was in reference to the calculation being based on approved crew positions, rather than the number of crew numbers currently working, which meant that crew vacancies were included in the approved crew number calculation.
Summary of Applicant’s reply
[53] The Applicant provided a statement of Mr Power in reply to the evidence of Ms Fellows.
[54] Mr Power reiterated his evidence that the discussion was “clear” that labour hire was not to be excluded from the approved crew numbers. However, Mr Power stated, that there was no suggestion that anyone other than BMA employees would be considered in the quota calculation.
[55] Mr Power did not otherwise lead any contemporaneous notes in reply to the evidence of Ms Fellows.
Consideration
[56] The Commission, in interpreting the clause, was referred to the High Court decision in Amcor Ltd v Construction Forestry, Mining and Energy Union 14where their Honours, Gleeson CJ and McHugh J, relevantly stated:
“(t)he resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose, and the nature of the particular reorganisation.” 15
[57] And further, at paragraph [13], the decision sets out that in terms of the interpretation of a clause it is necessary to consider:
“…the industrial purpose of the agreement, and the commercial and legislative context in which it applies.”
[58] Further, Kirby J said at paragraph [96]:
“The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd, where his Honour observed:
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.”
[59] These principles of interpretation have been utilised in examining the Agreement clauses, and the submissions and evidence of the parties.
[60] The Applicant’s interpretation of clause 22.6(a) could lead to some unintended consequences. Following from the example as provided by the Applicant (extracted above), if 7 non-employee workers were on leave (being the maximum number of “workers” that is below 20% of the proposed 40 in the ACN), on the Applicant’s contention, another 7 employees (also being the maximum number of “workers” that is below 20%) are automatically entitled to take approved leave. This then means that, on the Applicant’s submission, 14 “workers” would be on annual leave, out of the total 40 of the approved crew number. This is 35% of the approved crew number.
[61] It is quite telling, that the words used in clause 22.6(a) describe that the 20% leave quota is to be based on the approved crew number, but in calculating 20% the clause simply states “[L]ess than 20% (rounded up to the nearest whole number) away on leave” and does not state what group of the approved crew number is included in the 20% leave quota. The clause could very easily have said 20% of employees.
[62] Clause 22.6(b) supports this contention. The framers specifically excluded a group of employees (ie apprentices) from the calculation of the approved crew number. This same approach could have been taken, had the explicit intention of the parties been to further define the calculation of the 20%, to employees only, or to exclude non-employees from inclusion in the numbers, when applying the 20% quota.
[63] A further matter for consideration in this regard is the difference between the 2007 and 2012 Agreements. The 2007 Agreement, as Mr Power points out in his evidence, specifically included the word “employee” as to what the 20% refers to. The 2007 Agreement clause stated “<20% employee absent on annual leave or long service leave” (clause extracted in full above). That reference, to employees, has been removed between the two industrial instruments, lending support to the interpretation contended for by the Respondent. Had the parties intended the operation to remain the same in this regard, the clause would not have been amended, and agreed to; in the form it now appears.
[64] It is a sensible industrial outcome, and the preferable construction, that this 20% would be based on the greater number of people (both employees and non-employees) working in the crew, as both of those groups together, make up the approved crew number and are drawn upon for “Shift coverage”. Applying the percentage to the aggregate of these groups provides for a greater number for the quota figure to access leave. To find otherwise would be to impose words (the words “of employees”) into the phrase, used by the framers of this provision, words which do not appear in the clause, despite being in predecessor clauses.
[65] There was some argument between the parties as to the “favourable” nature of the clause and how each interpretation was “favourable”. The preferable interpretation, on the material (which is outlined above), is favourable to employees in that should a crew have 50% vacancies, the approved crew number still takes into account those vacant positions and 20% of that total crew number is the quota. If this was not the case, then the numbers of employees potentially able to take leave, in the scenario just outlined, would be substantially decreased. This is a favourable outcome to employees in the operation of the provisions of the Agreement.
[66] This is even more so in circumstances where BMA, does not have direct control over non-employee workers, in the sense that they are not the employer of those employees. It is foreseeable however that circumstances could arise, potentially, where a significant number of non-employee workers are absent from the workplace creating uncertainty in the Respondent’s ability to manage their workload, if a further 20% of their employees in that crew could also automatically expect leave, because of the interpretation contended for by the Applicant, means that the Respondent would have to ignore that situation, of the number of non-employees on leave, and allow a further 20% of the Respondent’s employee pool to take leave. This is not an industrially sensible outcome.
[67] The interpretation (of the 20% leave quota being of based on approved crew numbers) is further supported by the fact that it does not detract from the intention, that the Applicant submits existed, in drafting these clauses. Employees continue to have an entitlement to take leave or have leave approved where less than 20% of the approved crew number is on leave (note in applying the 20% leave quota, that is those actually approved to take leave, the 20% does not include vacant positions in the numbers considered to be on leave). There was no evidence before the Commission of excessive leave accruals and only limited particular instances of where employees were not able to take annual leave in what could be termed “unjust” circumstances.
[68] However, if denial of leave that fell within the 20% automatic quota, of the approved crew number, was occurring, or denial of leave in the over 20% quota option, when the reasoning for such denial, was not commensurate with a fair assessment of the criteria for the greater than 20% discretion, then these are matters that could give rise to a matter under the disputes procedure.
[69] In instances where the 20% quota is full, employee’s accrued annual leave remains, and continues to accrue, despite any instance of denial of an annual leave application. It is likely that the Respondent would have policies and procedures for managing excessive leave accruals and would, in those circumstances, make the necessary arrangements with any individual employee after consultation. The clause, at 22.6(c), sets out the Respondent’s discretion to increase the number on leave where operational requirements allow. Again, these annual leave issues, for which the Respondent reasonably can be called upon to justify, if leave is sought, and the quota is full, or has been accounted for predominantly by non-employees.
[70] Similarly, the Respondent is entitled to have some certainty around their business planning, and the safe and productive operation of the mine, particularly in an environment where employees and non-employees commonly work together in situations, where they are basically the one team. Of course this does not reduce an employee’s leave entitlement. This matter concentrates on the authorisation for the approval process, and the consideration therein.
[71] The basis of the comparison of the parties’ interpretations departs as to the utilisation of the “approved crew numbers”. The Applicant accepted that “approved crew numbers” included non-employee workers. The wording of clause 22.6(b) supports this interpretation as approved crew numbers “are the number of positions in each crew approved by the Company” (emphasis added). Had the clause been intended to operate, in the second step of applying the quota, without any reference to non-employee workers, then the framers would not have stipulated that the basis for applying the leave quota was a figure that excluded non-employee workers; just as clause 22.6(b) excluded apprentices.
[72] There is a contest between the parties as to what was the intention at the time of drafting. It is clear, and the evidence supports the view, that the purpose was primarily to simplify the assessment of employee applications for access to annual leave and to operate the crew to ensure overall shift coverage and meet operational coverage. The prior 2007 Agreement had multiple, prescriptive, site specific entitlements.
[73] The debate about whether or not the second intention was to create a “favourable” or beneficial entitlement is apparent, given that based on the Respondent’s interpretation when the total crew numbers are taken into account the quota number that can apply for employees accessing leave, is potentially inflated, by the greater ACN. Thus, whilst all applications for leave are considered as part of this quota, if no non-employee applied, 20% of employees would be entitled to automatic leave, thus providing a more favourable outcome, than if only 20% of the employee numbers formed the quota number.
Conclusion
[74] The Commission is tasked with the interpretation of the words of the provision, as drafted and agreed between the parties. It is clear from the submissions that two different readings of the words have emerged. Neither reading denies an employee their entitlement to annual leave. The clause does regulate when their application to take such leave may be granted. The clause provides for a 2 step process in assessing applications for annual leave.
[75] Firstly the calculation of the quota: that is, how many workers equates to 20% of the total crew (the approved crew number [ACN]), including employees and non-employees.
[76] The second step is the approval mechanism for applications for annual leave, and there is 2 levels within this second step. Firstly, where a leave application is made by a Respondent employee and the number equivalent to the level of 20% of the ACN has not been approved to take leave, the employee is automatically granted leave. Secondly, where such 20% level, of ACN, has been reached (this number should obviously be known between the parties), then the Respondent has an obligation to assess the stipulated Mine operational and skill availability considerations; as to whether further leave applications, above the 20% level, can be granted. Denial of leave applications under this second limb would be, applicable, to pursuit under the disputes procedure with the relevant procedural caveats of that clause first being met.
[77] Accordingly, relying on the principles of interpretation (the interpretation of the words, and the industrial outcome, of clause 22.6(a)), give rise to a conclusion that 20% is the relevant quota (for leave applications) to be based upon the approved crew number. The Commission accepts that the parties’ drafting of the provision left a gap (that required this interpretation), as to what the 20% applies to, or how the 20% is utilised to apply the quota. Taking into account the submissions, evidence and plain meaning of the words, the industrially sensible construction is that contended by the Respondent. This construction is consistent with the common intention, that both parties accept, to simplify the leave quota system. The employees are entitled to know the approved crew number. The specific drafting of the clause, and the absence of the word “employee” from the prior clauses in the 2007 Agreement, to the current version, confirm this view.
[78] Accordingly for the aforementioned reasons, the question for arbitration is answered as follows:
Under clause 22.6(a) of the Agreement, all workers within a crew (Respondent employees and non-employee workers) are counted in calculating whether “more or less than 20%” are “away on annual leave” at a given time.
[79] I Order accordingly.
COMMISSIONER
1 Applicant outline of submissions at 2.
2 Applicant outline of submissions at 10.
3 Statement of Glenn William Power at 6.
4 Statement of Glenn William Power at 10.
5 Statement of Glenn William Power at 11.
6 Statement of Glenn William Power at GP01.
7 Statement of Glenn William Power at 14.
8 BHP Coal Pty Ltd Workplace Agreement 2007, Peak Downs Schedule B, Clause 16.
9 (1996) 66 IR 182.
10 Applicant outline of submissions at 29.
11 Statement of Glenn William Power at 15.
12 Statement of Helen Julia Fellows at 20.
13 Statement of Helen Julia Fellows at 21.
14 (2005) 222 CLR 241.
15 (2005) 222 CLR 241 at [2] and [96].
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